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CHAPTER 13 TRUSTEE’S GUIDELINES FOR REVIEW OF CHAPTER 13 FEE APPLICATIONS
1. GENERALLY
The Chapter 13 Trustee evaluates attorney’s fees pursuant to 11 USC §329 and §330. 11 USC 329 provides:
Debtor’s transactions with attorneys
(a) Any attorney representing a debtor in a case under this title, or in connection with such a case, whether or not such attorney applies for compensation under this title, shall file with the court a statement of the compensation paid or agreed to be paid, if such payment or agreement was made after one year before the date of the filing of the petition, for services rendered or to be rendered in contemplation of or in connection with the case by such attorney, and the source of such compensation.
(b) If such compensation exceeds the reasonable value of any such services, the court may cancel any such agreement, or order the return of any such payment, to the extent excessive, to—
(1) the estate, if the property transferred— (A) would have been property of the estate; or
(B) was to be paid by or on behalf of the debtor under a plan under chapter 11, 12, or 13 of this title; or
(2) the entity that made such payment.
Steinberg v. Alvarado (In re Alvarado), 2003 W.L 22097092 (W.D. Tex., July 29, 2003) Although the ordinary remedy for noncompliance with section 329 is the return of any payment to the extent it exceeds the reasonable value of services rendered, a bankruptcy court may order complete disgorgement of counsel’s fees as a sanction for nondisclosure. Matter of Dellutri Law Group, 482 B.R. 642 (Bankr. M.D. Fla. 2012). Failure to disclose a required $50 to $150 fee to recover recurring overhead expenses was a violation of the firm’s disclosure duties. But, disgorgement of all fees, on 2,000 Chapter 13 cases, was too harsh a sanction where firm had self-reported the violation and cooperated in the U.S. Trustee’s investigation. Still, sanctions were in the neighborhood of $58,000.00. In re Whitley, No. 08-60098, 2011 WL 5855242 (Bankr. S.D. Tex. Nov. 21, 2011) (Bohm) Debtor's attorney must disgorge all fees when did not comply with Bankruptcy Rule 2016 disclosure requirements and services provided no reasonable value. Attorney represented debtor in two Chapter 13 cases and did not disclose fees paid until after cases were dismissed. Some fees were paid by debtor postpetition from property of estate, without disclosure or court approval. Plans were not confirmable, and no evidence of any results beneficial to debtor or estate, only delay of foreclosure. No Stern v. Marshall, __
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U.S. __, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), issue because proceeding arose out of disclosure requirements imposed by Bankruptcy Code.
In re Caise, 359 B.R. 152 (Bankr. E.D. Ky. Feb. 6, 2006) Debtors' attorney ordered to refund all fees to debtors: attorney failed to adequately supervise paralegal, who was only one to meet with debtors until attorney called to advise that they must file Chapter 13 rather than Chapter 7 petition that was signed while they were meeting with paralegal. THE TRUSTEE IS LOOKING FOR COMPLETE AND ACCURATE DISCLOSURE AND REASONABLENESS OF FEES.
A §329 motion will generally be brought by the Chapter 13 Trustee because you didn’t disclose a fee, improperly disclosed a fee or didn’t provide reasonable services for the fee obtained.
11 USC 330 provides: Compensation of Officers (a)
(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, a consumer privacy ombudsman appointed under section 332, an examiner, an ombudsman appointed under section 333, or a professional person employed under section 327 or 1103—
(A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by any such person; and
(B) reimbursement for actual, necessary expenses.
(2) The court may, on its own motion or on the motion of the United States Trustee, the United States Trustee for the District or Region, the trustee for the estate, or any other party in interest, award compensation that is less than the amount of compensation that is requested.
(3) In determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including—
(A) the time spent on such services; (B) the rates charged for such services;
(C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title;
(D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed;
(E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and
(F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. (4)
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(A) Except as provided in subparagraph (B), the court shall not allow compensation for— (i) unnecessary duplication of services; or
(ii) services that were not—
(I) reasonably likely to benefit the debtor’s estate; or (II) necessary to the administration of the case.
(B) In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. (5) The court shall reduce the amount of compensation awarded under this section by the amount of any interim compensation awarded under section 331, and, if the amount of such interim compensation exceeds the amount of compensation awarded under this section, may order the return of the excess to the estate.
(6) Any compensation awarded for the preparation of a fee application shall be based on the level and skill reasonably required to prepare the application.
(7) In determining the amount of reasonable compensation to be awarded to a trustee, the court shall treat such compensation as a commission, based on section 326.
(b)
(1) There shall be paid from the filing fee in a case under chapter 7 of this title $45 to the trustee serving in such case, after such trustee’s services are rendered.
(2) The Judicial Conference of the United States—
(A) shall prescribe additional fees of the same kind as prescribed under section 1914(b) of title 28; and
(B) may prescribe notice of appearance fees and fees charged against distributions in cases under this title; to pay $15 to trustees serving in cases after such trustees’ services are rendered. Beginning 1 year after the date of the enactment of the Bankruptcy Reform Act of 1994, such $15 shall be paid in addition to the amount paid under paragraph (1). (c) Unless the court orders otherwise, in a case under chapter 12 or 13 of this title the compensation paid to the trustee serving in the case shall not be less than $5 per month from any distribution under the plan during the administration of the plan.
(d) In a case in which the United States trustee serves as trustee, the compensation of the trustee under this section shall be paid to the clerk of the bankruptcy court and deposited by the clerk into the United States Trustee System Fund established by section 589a of title 28.
In re Boddy, 950 F.2d 334 (6th Cir. Ky. 1991) The Supreme Court has made it clear that the lodestar method of fee calculation is the method by which federal courts should determine reasonable attorney's fees under federal statutes which provide for such fees. See, e.g., Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 483 U.S. 711, 97 L. Ed. 2d 585, 107 S. Ct. 3078 (1987) (lodestar method used to calculate fees under Clear Air Act); Hensley, 461 U.S. at 433-34 (lodestar method used to calculate fees under 42 U.S.C. § 1988). Because the Code provides for attorney's fees, and because the plain language of the Code indicates Congress intended no distinction between attorney's fees in bankruptcy cases and those awarded in non-bankruptcy cases, the courts have generally relied upon the lodestar approach when determining attorney's fees in
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bankruptcy cases. See Grant, 908 F.2d at 878; Manoa Finance, 853 F.2d at 690; Consolidated Bancshares, 785 F.2d at 1257. We join these courts in adopting the lodestar method of fee calculation for bankruptcy cases.
In re Moore, 2012 Bankr. LEXIS 4581 (Bankr. N.D. Ohio Sept. 27, 2012) Turning first to the lodestar, the court is not convinced of the reasonableness of ….. hourly rate of $225. ….. is relatively unknown to this court and failed to provide any basis for determining the reasonableness of the rate. The court notes that this rate is on the high end of the spectrum for experienced bankruptcy attorneys practicing in the Canton court. The court finds that the time expended ….. on this case is patently unreasonable. First, there are billings for questionable services. For example, on April 18, 2012, ……. billed one full hour to prepare for and attend the confirmation hearing. The court has no record of holding a confirmation hearing. Similarly, there is an entry on January 5, 2012 for "Receipt and review of correspondence from Court regarding hearing result." Again, the court has no record of a hearing. If ………. is referring to the notice from the chapter 13 trustee concerning the 341 meeting, twelve minutes to review a one page, straight-forward document is unreasonable.
This is indicative of the second problem — too much time is devoted to very routine, simple items. For example, on December 19, 2011, …….. billed twelve minutes, for a total of $45, to review the wage order issued by the chapter 13 trustee. The wage order contains two salient pieces of information, the employer and the amount. To the extent verification of these facts required attorney time, and could not have been handled by administrative staff, the court cannot find any reason to expend more than .10 of an hour on the task. Another example is billing .20 hours on March 30, 2012 to review a pleading ….. Looking at the docket, the pleading is a one page Notice of Appearance by Ms. Taylor on behalf of the Ohio Department of Taxation. The court is perplexed by the need to expend any time on this item.
The churning rings true of many of the entries, including the review of claims. Most of the claims, and amounts, clearly correspond to the schedules prepared by Debtors, requiring minimal attention. Yet ……. charged approximately $700 for his review of the claims. Not one review resulted in any action, such as an objection to claim.
Most troubling, however, is that in spite of the time and attention apparently devoted to each and every claim, the court finds the services to be of little benefit to Debtors. Based on the court's calculations, Debtors' plan is substantially underfunded, mainly due to the significantly higher arrearage claim. Debtors' confirmed plan listed the arrearage at $9,165. The mortgage company filed a proof of claim on June 6, 2012 claiming an arrearage of $21,675. As a direct result of the higher arrearage claim, the plan cannot be completed within thirty-six months at the current monthly payment.
Berliner v. Pappalardo (In re Sullivan), 674 F.3d 65, 69-70 (1st Cir. Mar. 21, 2012) (Selya, Souter, Lipez) $3,684 is reasonable fee for "relatively uncomplicated" Chapter 13 case. "[W]e have recognized that the lodestar method is an appropriate measuring device
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for attorneys’ fees in bankruptcy cases. . . . [N]otwithstanding the need for a means test calculation, the debtors' case was not complex. . . . [L]awyers have an obligation to keep hand-holding within reasonable limits."), aff'g 454 B.R. 1 (D. Mass. June 15, 2011) (Ponsor) (Reduction of $12,000 requested fee to $3,684 was not clearly erroneous; it was easily inferred that bankruptcy court was troubled by number of hours claimed.
Stephen A. Thomas, PLC v. Jones, No. 07-CV-12074, 2007 WL 4239307, at *8 (E.D. Mich. Nov. 30, 2007) (Borman) Reduction of fees is justified based on lack of benefit or necessity of services; reasonable prepetition inquiry would have dictated Chapter 7 rather than Chapter 13 filing. Attorney "should have realized before filing that the Debtor could not have possibly sustained a Chapter 13 plan, given his income, his debts, and his mortgage arrearage. The Bankruptcy Court calculated that, given the fact that the Chapter 13 plan was not 'arguable,' under § 330(a), the only benefit to the Debtor was the 101 days of automatic stay—and that all other work performed on behalf of the Debtor was futile given the obvious impossibility of filing the Chapter 13 plan."
In re Weaver, No. 13-10-12204 JA, 2011 WL 867136 (Bankr. D.N.M. Mar. 11, 2011) (Jacobvitz) Requested fee was reduced by $2,120. $150 hourly rate for associate and $200 hourly rate for senior attorney were reasonable. Time spent filing documents electronically was disallowed. Although some training in CM/ECF system was required, filing documents electronically was not a billable task, whether performed by attorney or staff member.
Caplin and Dyrsdale Chartered v. Babcock & Wilcox (Matter of Babcock & Wilcox), 526 F. 3d 824 (5th Cir., May 1, 2008, Per Curiam) A case of first impression holding that a bankruptcy court would not be reversed for discounting attorney’s fees by 50% for non-working travel time under section 330.
In re James, No. 10-37213-H313, 2011 WL 717275 (Bankr. S.D. Tex. Feb. 22, 2011) (Paul) Fee request was reduced by time for preparation and sending of routine letters, which were services more appropriately performed by paralegal or staff. Letters did not justify one-sixth hour each at attorney's hourly rate.
In re Phillips, 291 B.R. 72 (Bankr. S.D. Tex., March 5, 2003) When a Chapter 13 plan is confirmed there is an obvious and demonstrated benefit to the debtor and, presumably, counsel’s services contributed to completion of the case. But when cases are dismissed prior to plan confirmation, counsel must provide an explanation in the fee application and evidence that counsel provided substantial, valuable professional services including investigation, evaluation and counseling that was intended and designed to achieve an objection appropriate for Chapter 13 cases.
Barron v. Countryman, 432 F. 3d 590, (5th Cir., December 7, 2005) Fees paid to a Chapter 13 debtor’s attorney for post-petition services in addition to the normal handling of the case require approval under section 330. The Bankruptcy Code requires court approval of all attorney’s fees sought to be paid from the estate of the the debtor under
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section 330(b)(4)(B). Section 330 is not applicable to attorney fees derived from a source other than the debtor’s estate.
In re Vernon-Williams, 343 B.R. 766 (Bankr. E.D. Va. Apr. 27, 2006) Supplemental fee applications in excess of $1,500 "no look" fee are denied because law firm did not record actual time but used an average or "minimum" time for each additional service. Miscellaneous "costs" charged to each debtor were not properly revealed or explained on Rule 2016 disclosure and were not recoverable.).
In re Best, No. 06-23075-D-13L, 2008 WL 3485597 (Bankr. E.D. Cal. Aug. 11, 2008) (Bardwil) Fee application reduced for secretarial services that are not compensable. In re Taylor, No. 05-31212-H3-13, 2008 WL 3540662 Bankr. S.D. Tex. Aug. 11, 2008) (Letitia Clark) Debtor's attorney not entitled to compensation for data entry at an attorney's hourly rate even when attorney personally does data entry.
In re Kidwell, No. 07-01824-A13, 2008 WL 8005876 (Bankr. S.D. Cal. Apr. 28, 2008) (unpublished) (Bowie) Presumptive fee, which had been increased in district to $3,300, was reasonable and appropriate in routine case; debtors' attorney had burden to show that case was extraordinary or unusual to support departure from presumptive fee.
THE TRUSTEE IS LOOKING FOR AN ADHERENCE TO THE
REQUIREMENTS OF SECTION 330 OF THE CODE SO THAT ALL PROFESSIONAL COMPENSTAION IS REASONABLE AND NECESSARY AND TO INCREASE DISCLOSURE AND TRANSPARENCY IN THE BILLING PRACTICES OF DEBTOR’S ATTORNEYS.
2. WHAT DRAWS A CHAPTER 13 TRUSTEE OBJECTION TO YOUR FEE APPLICATION?
a. Excessive time charges. b. Excessive rates.
c. Services not timely performed.
d. Charges that are not reasonable based on the customary compensation charged by skilled practitioners in other Chapter 13 cases.
e. Duplication of effort.
f. Insufficient information in the fee application.
g. Charging for clerical work or ministerial task including typing, file organization, making appointments, ECF filing documents, word processing, proofreading, secretarial services
h. Repetitive entries such as billing .10 hours for review of every proof of claim filed in a case.
i. Billing that is not contemporaneous or billing by a fixed time entry for a standard event.
j. An incomplete summary by name (timekeeper), total fees billed, currently hourly rate and rate changes (if any).
7 l. You have to be time efficient.
3. IN RE COPELAND, 154 B.R. 693, 1993 BANKR. LEXIS 778.
If you get in a fee dispute with the Trustee this case will get cited to you and the Court. The Trustee believes that the court has an obligation to examine the propriety of fees and expenses even if no objections are raised. Copeland at 696 and cases cited therein. This obligation if especially important in a chapter 13 case where a debtor has neither inclination nor motivation to object to attorney’s fees. For several reasons motivation of creditors to object is minimal. Copeland at 697
As a starting point, the Court must use the lodestar method. Copeland at 697
Equally important to determining the reasonable fee for the work performed is determining what truly constitutes professional services. The work for which lawyers receive compensation must be legal, not ministerial or clerical. Copeland at 698 and cases cited therein.
Of the Johnson factors, perhaps the most important is “the amount in involved and the results obtained.” The work performed must be evaluated in terms of benefit to the estate. This is an area of law where the practice is for the most part routine and the dollars involved are consistently few. As a result the efficiency of counsel is of paramount importance. Copeland at 698 and cases cited therein.
The applicant bears the burden of showing that fees requested are reasonable. Copeland at 698 and cases cited therein.
THE BANKRUPTCY COURT CAN RELY ON ITS OWN EXPERIENCE AND KNOWLEDGE AS TO WHAT CONSTITITUES REASONABLE ATTORNEY’S FEES. Copeland at 698.
In order to make what must be at best be a preliminary assessment of the reasonableness of the fees requested, the number, type and complexity of pleadings, contained in the debtor’s court file, the number, type and amount of the debtor’s creditors, and the debtor’s net monthly income are reviewed. Based on this information the court determines what it believes to be reasonable compensation. Copeland at 699
Itemize each activity, its date, the professional who performed the work, a description of both the nature and substance of the work and the time expanded thereon. Copeland at 699, note some of these are requirements of a local rules.
In order for time spend on activities such as court appearances, preparation for court appearances, conferences, telephone calls, drafting documents, and research to be compensable, the nature and purpose of the activity must be noted. Time entries for
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telephone calls must list the person with whom the applicant spoke and give a brief explanation of the conversation. Time entries for letters must state the addressee and give a brief explanation of the letter’s contents. Time entries for documents must specify the document involved. Time entries for legal research must specify the document involved. Time entries for legal research must describe the matter or proceeding researched. Copeland at 700 – 701, (note: some of these are requirements of a local rule very similar to Southern District Ohio local rule).
To the extent that … time entries… may reflect messages left or taken as to calls made, the time is not compensable as legal work. Nor are telephone calls made to the chapter 13 Trustee requiring or confirming adjournments of show cause or confirmations hearings or calls to the court to check on case numbers. Copeland at 702
Applicants must not attempt to circumvent minimum time requirements or any of the detail requirements by “lumping” or “bunching” a number of activities into a single entry. Each type of service must be listed with a corresponding specific time allotment. Copeland at 702
This court ordinarily will not award attorney’s fees for preparation of fee applications for routine consumer chapter 13 cases because such work does not benefit the estate but on the attorney requesting the fees. Copeland at 702 and case cited therein.
We are reminded of Justice Sandra Day O’Connor’s prescient observation …”An entity in bankruptcy can ill afford to waste resources on litigation; every dollar spend on lawyers is a dollar creditors will never see. “ It is important that debtor’s in bankruptcy have competent qualified counsel, and it is equally important that counsel be fairly and reasonable compensated. Copeland at 704
4. WHAT’S THE LOCAL RULE 2016-1(B) LBR Form 2016-b required.
Fee applications of up to $3500.00 “unitemized fee” without hearing or itemization. Shall include the following:
(i) analysis of the debtor’s financial situation, and rendering advice to the debtor in determining whether, and under what chapter, to file a petition in bankruptcy; (ii) preparation and filing of the petition, schedules, statement of financial affairs and amendments thereto that may be required;
(iii) preparation and filing of the chapter 13 plan, and any preconfirmation amendments thereto that may be required;
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(iv) preparation and filing of payroll orders and amended payroll orders;
(v) representation of the debtor at the meeting of creditors and confirmation hearing; and at any adjournments thereof;
(vi) filing of address changes for the debtor;
(vii) routine phone calls and questions;
(viii) review of claims;
(ix) review of notice of intention to pay claims;
(x) preparation and filing of objections to non-real estate and nontax claims exclusive of any hearings;
(xi) preparation and filing of first motion to suspend or temporarily reduce plan payments;
(xii) preparation and filing of debtor’s certification regarding issuance of discharge order; and
(xiii) any other duty as required by local decision or policy
Applications for fees when the total is in excess of the amount set forth in the “unitemized fee” must include an itemization of all legal services performed, the amount of the total fee requested and the actual time spent by the case attorney and by any other attorney, paralegal or professional person from whom fees are sought. Such application must be filed no later than sixty days from the entry date of the confirmation order. In re Wesseldine, No. 09-62553, 2010 WL 889556, at *7 (Bankr. N.D.N.Y. Mar. 8, 2010) (Davis) In "straightforward, uncomplicated" case, only $3,700 presumptive fee was allowed. "This case presents an opportunity for the Court to reiterate that Administrative Order 09-07 is not designed to remove the discretion of the bar in establishing a reasonable fee depending on the complexity of a particular case. Attorneys are in the first instance in the best position to determine the complexity of each case, and they should endeavor to propose a flat fee that bears some relationship to the work that will likely be required and which inevitably depends on the unique facts and circumstance[s] of each case. . . . Attorneys who consistently use the flat fee of $3,700.00 must expect to occasionally encounter a case with unforseen [sic] complications, thus resulting in a lower return than cases that proceed in a routine manner. . . . This is, however, the exception rather than the rule. Cases of increased complexity more often than not will be identified prior to the filing of the petition, such that attorneys can opt to utilize the hourly fee arrangement. The Court trusts that attorneys will exercise their best business judgment and chose [sic] the hourly fee option from the outset in a particular case if and when appropriate."
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5. CHAPTER 13 TRUSTEE’S POSITION STATEMENT ON PARALEGAL BILLING AND RATES
The Trustee adopts the ABA Model Guidelines for the Utilization of Paralegal Services, American Bar Association (2004) specifically Guideline 8 which provides that a lawyer may include a charge for the work performed by a paralegal in setting a charge and/or billing for legal services. The ABA Model Guidelines for the Utilization of Paralegal
Services are available at
http://apps.americanbar.org/legalservices/paralegals/downloads/modelguidelines.pdf. As stated by the ABI Model Guideline: “It is important to note that a number of court decisions have addressed or otherwise set forth the criteria to be used in evaluating whether paralegal services should be compensated. Some requirements include that the services performed must be legal in nature rather than clerical, the fee statement must specify in detail the qualifications of the person performing the service to demonstrate that the paralegal is qualified by education, training or work to perform the assigned work, and evidence that the work performed by the paralegal would have had to be performed by the attorney at a higher rate.”
A number of court decisions have addressed the criteria to be used in evaluating whether paralegal services should be compensated.
In reviewing fee applications for paralegal work the Trustee takes into consideration the following:
A. The services performed must be legal in nature rather than clerical. Most of the case law around the country suggests that “ministerial tasks” (typing, file organization, document preparation, searching or filing documents on PACER, etc.) performed by a professional or paraprofessional should not be allowed as a separate charge because it is part of the office overhead, which should already be built into the counsel’s hourly rate. In re Dimas, LLC, 357 B.R. 563, 577 (Bankr. N.D. Calif. 2006)
B. The fee statement must specify in detail the qualifications of the person performing the service to demonstrate that the paralegal is qualified by education, training or work to perform the assigned work. Guideline 8 - ABA Model
Guidelines for the Utilization of Paralegal Services.
C. The application must evidence that the work performed by the paralegal
would have had to be performed by the attorney at a higher rate. See the comment
to Guideline 8 - ABA Model Guidelines for the Utilization of Paralegal Services.
D. As the Supreme Court stated in Missouri v. Jenkins, 491 U.S. 274, n.10 (1989). “Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 717 (CA5 1974), said in regard to the work of attorneys is applicable by analogy to paralegals: "It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be
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accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it."
In reviewing billing rates for paralegals the Trustee consults The Economics of Law Practice in Ohio, Desktop Reference for 2010, Ohio State Bar Association (2010)
available at
https://www.ohiobar.org/General%20Resources/pub/2010_Economics_of_Law_Practice _Study.pdf. Mean billing rates for paralegals by firm size and experience are acceptable to the Trustee. These billing rates are currently:
Firm size less than 2, years of experience 0 to 3 years $55.00, 3 years to 5 years $65.00, 5 to 10 years $75.00, ten years plus $75.00.
Firm size 3 to 6, years of experience 0 to 3 years $55.00, 3 years to 5 years $75.00, 5 to 10 years $75.00, more than 10 years $85.00.
Firm size 7 to 20, years of experience 0 to 3 years $75.00, 3 years to 5 years $85.00, 5 to 10 years $85.00, more than 10 years $95.00.
